High Noon in the Wild West of E-Discovery

There’s a new sheriff in town policing parties who flout their discovery obligations under the Federal Rules of Civil Procedure. Weary of continuous bickering between the parties before him, U.S. Magistrate Judge John Facciola of the District of Columbia, a prominent figure in the evolution of e-discovery law—and the self-proclaimed “sheriff,” recently laid down the law in Tadayon v. Greyhound Lines, Inc., a case rooted in a patent dispute.

The “High Noon” portion of Judge Facciola’s Tadayon opinion reflects his resolve to implement practical litigation strategy and his distaste for the behavior of parties that engage in hardball tactics, including excessive motion practice, that lead to unnecessary discovery delays and expenses. The discovery parameters Judge Facciola set forth in this case offer valuable insight on the necessity of litigation readiness and cooperation.

In Tadayon, the plaintiffs complained about deficiencies in the defendant’s interrogatory responses, among other things, and sanctions against the defendant. In return, the defendant filed a motion to compel and sought sanctions. Judge Facciola took the parties to task for filing discovery motions in excess of 40 pages with thousands of pages of exhibits and acknowledged that the parties could have avoided these disputes had they cooperated from the outset.

What lessons can be learned from this case?

Cooperate, cooperate, cooperate. E-discovery is complicated enough. Cooperating with opposing counsel from the outset of a case can help eliminate potential disputes from surfacing later on and make for a smoother process overall. Efforts to cooperate will not go unnoticed by the court, as judges are not interested in refereeing discovery disputes and their impatience in doing so may not fare well for either party in a case.

Participate in meet and confer. An effective meet and confer process enables parties to formulate and agree upon a discovery plan that covers use of technology and IT systems, production formats, privilege strategy, search protocol, timelines, scope and other important aspects of discovery. Like the cooperation phase, making these decisions early on often enables parties to circumvent potential disputes and additional expenses, and alleviates the court from having to get involved when issues arise.

Communicate early and often with opposing counsel. When regular communication is taking place between parties and issues and questions are addressed as they arise, there is less of an opportunity for an unexpected explosion of problems further on in the discovery process. It’s not a bad idea to schedule regular calls or meetings to hash out discrepancies as they arise. Engaging in productive communication and solving issues with opposing parties – without judicial involvement – will only contribute to a more positive outcome.

So consider dropping adversarial tactics in favor of the guidelines set forth in The Sedona Conference’s Cooperation Proclamation. Instead of escalating disputes to motion practice, parties should engage in a productive dialogue and work toward more transparent discovery. By spending time up front to cooperate, parties will ultimately save time and money as they move more quickly toward substantive resolution of their dispute.